Nominations Obstacles for Legal Scholars

July 25, 2011

by Amanda Lynch

Law professors “have received a relatively chilly reception in Washington of late, at least when it comes to high-profile positions that require the blessing of the Senate,” reports The National Law Journal. That has taken some by surprise, given the President’s own academic background.

The Journal highlights the stalled bids of federal judicial nominees Goodwin Liu and Victoria Nourse and executive branch contenders Elizabeth Warren and Dawn Johnsen, all law professors who were opposed by Republicans. The blocking of UC Berkeley law professor Liu’s nomination to the Ninth Circuit Court of Appeals prompted UCLA law professor Adam Winkler to make a similar point about academics’ prospects before the Senate in May. In a guest post for ACSblog, Winkler wrote:

Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows.

Winkler expressed concern that law professors with judicial aspirations will be deterred from writing frequently, discussing controversial topics, and speaking out, a fear that Indiana University law professor Dawn Johnsen, whose nomination to head the Office of Legal Counsel was filibustered, urged young lawyers to resist.

“In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief," Johnsen, an American Constitution Society Board Member, said during the 2010 ACS National Convention.

She told the Journal, "Academics traditionally fill the role of critics of what's going on in the world, and try to keep people honest. They're rewarded for being creative, and it's wrong for academics to worry about how every word they write will be construed during the confirmation process. I don't want the lesson to be that you have to be constrained in what you say."

The Journal article points out exceptions to this trend of blocked academic nominations, including State Department Legal Adviser Harold Hongju Koh and Supreme Court Justice Elena Kagan. In his address to the Tenth Anniversary ACS National Convention, Koh, former Yale Law School dean, acknowledged the increasingly acrimonious confirmation process, highlighting in particular the experiences of Liu and Johnsen.

Academics with considerable experience outside a university setting tend to fare better, the Journal posits. While the politically charged environment may dim the prospects for nominees from academia, Robert Schapiro, interim dean at Emory Law, and Michael McConnell, director of the Stanford Constitutional Law Center, suggest that there is reason for their nominations to continue. As the Journal summarizes, “There's value in a bench made up of judges with diverse careers and different perspectives.”